Mawardi v. New York Property Insurance Underwriting Ass'n

183 A.D.2d 758, 585 N.Y.S.2d 320, 1992 N.Y. App. Div. LEXIS 6730

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 11, 1992
• Status: Published

Opinion

— In an action to recover damages for breach of an insurance contract, the defendant appeals from an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated September 10, 1990, which denied its motion for leave to amend its answer.

Ordered that the order is affirmed, with costs.

The court’s denial of the defendant’s motion to amend its answer was not an improvident exercise of discretion. After five years of discovery the defendant moved, about one week prior to the scheduled trial date, for leave to amend its answer to add additional affirmative defenses. However, the information upon which the affirmative defenses are based was known to the defendant for over five years. Therefore, since the defendant failed to offer an acceptable excuse for its delay in seeking the amendment, and since the plaintiff would be prejudiced by the addition of these new defense theories on the eve of trial, where the plaintiff had prepared his case in response to the original answer, the defendant’s motion was properly denied (see, Balport Constr. Co. v New York Tel. Co., 134 AD2d 309; Fulford v Baker Perkins, Inc., 100 AD2d 861). Thompson, J. P., Bracken, Sullivan and Santucci, JJ., concur.